Dear PAO,
I am writing on my own behalf and on behalf of my older brother, Tim. We are both illegitimate children of our father. Tim was conceived and born while my father was legally married to another woman. Meanwhile, I was conceived and born after my father’s wife had died. Despite our illegitimacy, our father acknowledged us in our respective birth certificates. Our father now plans to marry our mother. I want to ask if their marriage will automatically give us the status of legitimate children.
Edie
Dear Edie,
The process of converting the status of a child from illegitimate to legitimate through the subsequent marriage of the child’s parents is known as legitimation. This process, as described in the Family Code, as amended by Republic Act 9858, has certain requisites.
Firstly, the reason for the child’s illegitimacy must be established, specifically whether a legal impediment prevented the child’s parents from marrying each other at the time of the child’s conception. Under Article 177 of the same Code, if the illegitimacy of the child is due to the existence of a legal impediment to the marriage of the parents, such as a prior existing marriage to another person, then legitimation cannot apply. On the contrary, if both parents were legally capacitated to marry each other at the time of the child’s conception but chose not to do so, then legitimation may proceed. The same article also states that the disqualification cannot be due to one of the parties being under 18 at the time of the child’s conception.
Secondly, the subsequent marriage of the parents must be valid. Article 178 of the Family Code specifically states that “Legitimation shall take place by a subsequent valid marriage between parents.” This means that all requisites of marriage have been complied with and there are no legal impediments to the marriage.
If there was no legal impediment to marriage at the time of the illegitimate child’s conception, and the parents later on enter into a valid marriage, then legitimation may occur. As soon as the marriage is validly entered into, the illegitimate children are legitimized and are given all the legal rights and status of a legitimate child. Such rights and status will retroact to the time of the birth of the child, meaning that it would be as if the child was legitimate since birth. (Art. 178–80, Family Code)
Applying these principles to your situation, your parents’ plan to marry each other, if there are no legal impediments, would result to your legitimation because you were conceived and born when your father is no longer incapacitated to marry due to the death of his legal wife. Unfortunately, your brother, Tim, cannot be legitimized. Unlike you, Tim was conceived and born while your father was still validly and legally married to another woman. This acts as a legal impediment to marriage, which disqualifies your brother from being legitimized.
A possible remedy for your brother would be for your parents to adopt him. The adoption process, once completely and validly complied with, will grant Tim the same status as a legitimate child as well.
We hope that we were able to answer your query. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your unwavering trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.
